Q: I my mom passes, does my stepfather or his children from another marriage have any rights to her home?
My mom is the only one on the deed. It was paid off 10 years prior to their marriage. Does he or his children have any rights to the property upon her passing? The home is in Fl. I am her only child.
A: Please accept my sincere condolences on your mother's passing. If hers was the only name on the deed and she was married at the time of her passing, then her spouse has an election for which he only has six months to make, otherwise he gets a default of a life estate in the homestead, remainder to you. His other option which requires an election in a certain format which is then recorded in the public records like a deed is to elect to take a 50/50 tenancy in common with you. He would need to hire an attorney most likely to make this election.
In the meantime, in order for this property to be transferred by a court's homestead order as follows: life estate to him (right to reside in the home for life with responsibility for maintenance and paying taxes), remainder to you upon his death, you would need to hire an attorney to petition the court to open a summary administration and for the court to sign the homestead order.
If you open a summary administration, you can also include your mother's personal belongings inside the home (anything that would not be considered joint personal property), and those items should be distributed 50/50 between you and your stepfather. If, for example, he is refusing access for you to retrieve your mother's personal belongings, then a court order can be helpful in this regard.
If you don't get a homestead order, this property will remain as heirs property with the presumption that it is life estate to spouse, remainder to child; however, spouse will not be able to get a homestead exemption on his property taxes without the homestead court order, and the property taxes are likely to increase. Also if you and he wanted to join together to sell the home, then you would first need a judge to sign the homestead order, which when recorded in the public records by the clerk, acts like a deed, again, life estate to him, remainder to you. If you agree to sell the property after the order is signed, then the title agent at the time of closing will help you determine the value of the life estate and the remainder, based on the actuarial tables and your stepfather's life expectancy (unless he has made that 50/50 election mentioned above and recorded it). If he has made that election, then the proceeds of sale would be split 50/50.
Our office handles summary administration anywhere in the State of Florida for a flat fee. If you would like to call me for a free phone consultation, you are welcome to do so, and we can discuss this case further and what it would cost to proceed.
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